|
Evidence - Privilege - Solicitor-Client (6). 1307839 Ontario Limited et. al. v. Klotz Associates et. al.
In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered solicitor-client privilege:Law regarding privilege
Solicitor-client privilege
[20] Solicitor-client privilege is fundamental to the Canadian legal system and has evolved over the years from a rule of evidence to a rule of substantive law: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 17; Descôteaux c. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, [1982] S.C.J. No. 43, at paras. 26-27.
[21] While solicitor-client privilege is not absolute, the Supreme Court of Canada has repeatedly held that it “must be as close to absolute as possible to ensure public confidence and retain relevance”: McClure, at para. 35; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, [1999] S.C.J. No. 15; R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209; Ontario (Ministry of Correctional Services) v. Goodis, 2006 SCC 31, [2006] 2 S.C.R. 32.
[22] In determining whether a document for which privilege is claimed should be ordered disclosed, the appropriate test to be applied is “absolute necessity”: Goodis, at para. 24.
[23] Privilege may be waived expressly or impliedly. Implied waiver typically happens either by way of disclosure or reliance. Once a privileged document or legal advice has been disclosed, the privilege attaching to it is considered to be lost. If a party claiming privilege pleads or otherwise relies upon a privileged document or legal advice for the purpose of pursuing their position in a legal proceeding, then the privilege is considered lost. Waiver of privilege attaching to a solicitor-client communication will be implied where the communication is “legitimately brought into issue in an action”. Waiver of privilege attaching to legal advice will be implied where a party has put in issue its state of mind and that state of mind has been informed by legal advice received. In determining whether there has been an implied waiver of privilege, the court must balance the principles of fairness and consistency against the importance of solicitor-client privilege: Bank Leu AG v. Gaming Lottery Corp., 43 C.P.C. (4th) 73, at para. 5; McQueen et al. v. Mitchell et al., 2022 ONSC 649, at paras. 59-60; Laliberté, at para. 22.
[24] Once it has been established that a communication is subject to solicitor-client privilege, the party seeking to overcome the privilege bears the onus of establishing that the communication ought to be compelled from the party asserting the privilege: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, at para. 76.
|
